Friday, December 28, 2007

So a Navy JAG resigned over waterboarding

"It was with sadness that I signed my name this grey morning to a letter resigning my commission in the U.S. Navy," wrote Gig Harbor, Wash., resident and attorney-at-law Andrew Williams in a letter to The Peninsula Gateway last week. "There was a time when I served with pride ... Sadly, no more."

Williams' sadness stems from the recent CIA videotape scandal in which tapes showing secret interrogations of two Al Qaeda operatives were destroyed. ...

The tapes may have contained evidence that the U.S. government used a type of torture known as waterboarding to obtain information from suspected terrorists.

Torture, including water-boarding, is prohibited under the treaties of the Geneva Convention.

Not for illegal combatants and terrorists it's not. (Did I mention the Knight Ridder reporter was stupid, too?)

It was in the much-publicized interview two weeks ago between Sen. Lindsey Graham (R-South Carolina) and Brig. Gen. Thomas Hartmann, who is the chief legal adviser at the Pentagon's Office of Military Commissions, that led Williams to resign.

In the interview, Graham asked Hartmann how the uniformed legal community should respond if the Iranian government used waterboarding to torture a U.S. solider into disclosing when the next U.S. military operation would occur.

Hartmann responded: "I am not prepared to answer that question."

For Williams, a former naval Lieutenant Commander and member of the Judge Advocate General's Corps (JAG), this answer went against "every training I had as an attorney" and as a member of the military.

Williams enlisted in the Navy in 1991 after completing law school at Santa Clara University. He was a legal officer and defense counsel in the U.S. Navy, meaning he both prosecuted and defended people in military courts.

He served on the USS Nimitz CVN-68, based in Bremerton, before becoming a member of the Naval reserves in 1995.

Williams, 43, felt that Hartmann was admitting torture is now an acceptable interrogation technique in the United States -- an admission that did not sit well with him.

This isn't rocket science, and it's not complicated. A U.S. soldier in such a hypothetical would be a legal combatant, wearing a uniform, carrying arms openly, responsible to a chain of command, and entitled to protection under Category III of the Geneva Conventions.

An ununiformed terrorist is entitled to no such protection.

If this is what passes for legal reasoning in his mind, we're better off with him chasing ambulances in Gig Harbor. Good riddance.

Jason, you're too smart to make such a narrow arguement. He's not saying that the Geneva Convention applies to illegal combatants, he's saying the reasons that it's a bad idea to use waterboarding on legal combatants also make it a bad idea to use it on illegal combatants. You know that. Why the cheap shots?

JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.) and former Special Assistant to the Judge Advocate General for Law of War Matters, now a professor at South Texas College of Law, says that the US Supreme Court's finding in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions applies to US military operations against al Qaeda restores a broad approach to basic law of war doctrine long held by US military lawyers...."Jurist

I'm not a lawyer or anything, but there was just a forum on this subject that I might have slept through with seemed to imply that the court had asserted that CA3 did apply. I did a quick search on the subject and this was the first return.

Are you limiting the discussion only to this conflict, aren't there likely to be other conflict with other enemies in the future, and aren't they likely to site precedence from our actions in this war against us, then?

They will cite whatever they choose to cite...whether they have to lie about it or not. They will cite whatever they think will give them a marginal propaganda boost, whether it is accurate or not.

Did you learn nothing from the Israel-Lebanon war of last year?

The media is a battlefield now, and they will kill their own children and parade them before the cameras for a photo op.

If our troops behave and don't rape, they will get accused of being motivated by racism if we don't rape.

We cannot make decisions in war by hoping the enemy will behave decently. You cannot win at chess by hoping the other guy makes the move you want him to make.

The truth of the matter is we treat our detainees better than any combatant power in the history of armed conflict.

Did Thomas Tucker and Kristian Manchaca get any benefit from that? Did Jessica Lynch, who was raped and sodomized with her broken limbs?

No.

If we are out to create precedent, then let us create a precedent that will provide our enemies, both current and future, with a real, tangible incentive to carry arms openly, respect the lives of noncombatants, hold themselves accountable to a responsible chain of command, and generally comport themselves in accordance with the rule of law.

Those combatants who do so will recieve all the protections the law allows, and many more that our soldiers likely would not receive, even if we were not fighting the most evil bunch of roaches to infest the earth since Imperial Japan. (At least the Khmer Rouge mostly kept to themselves.)

Tom, the naivete expressed in your line of reasoning is astounding. When we obfuscate the distinction between a lawful combatant and a terrorist, the real precedent you are setting is a powerful incentive to become a terrorist.

After all, it is much safer to be a terrorist and target civilians than to engage U.S. troops in an open fight. When you argue that illegal combatants and terrorists are entitled to the full protections afforded to honorable men under the law of land warfare, you give them all the upside of terrorism, while eliminating its downside.

In short, by putting terrorists on the same plane with honorable soldiers, you legitimize them, you encourage them to use more terror tactics, not less, and you insult honorable soldiers on both sides of any conflict - including our own.

The enemy's legal combatants should be afforded the respect due a warrior.

The enemy's terrorists should be afforded the respect due a rabid dog.

"Tom, the naivete expressed in your line of reasoning is astounding. When we obfuscate the distinction between a lawful combatant and a terrorist, the real precedent you are setting is a powerful incentive to become a terrorist.

After all, it is much safer to be a terrorist and target civilians than to engage U.S. troops in an open fight. When you argue that illegal combatants and terrorists are entitled to the full protections afforded to honorable men under the law of land warfare, you give them all the upside of terrorism, while eliminating its downside. "

Believe it or not this is the best argument you have made, because it was the same argument I was going to make, that if we make for a special treatment for the terrorist it will turn into an incentive. But by affording them the same treatment we give everyone else, we eliminate any incentives, propaganda or otherwise. So now you have made me think...And I don't know the answer off hand.

The question still remains of what to make of "Hamdam".

You guys took the oath. What will it mean to troop if we ask them to ignore that oath, in this case?

And on a separate issue, you seem to take it as a given that some value was gained. You may know more about that than me, but I would like to see proof of the value.From where I sit, the opposite appears to the case. It looks like the policy failed miserably, and that we turned the corner after the information became public, and presumably the treatment stopped.How do you square that peg.

Hamdan ruled that tribunals had to be set up in accordance with the UCMJ and the Geneva Conventions.

Its decision attaches to obligations of the US in providing for due process in determining status; it does not attach to the rights of individual detainees, except insofar as what they may expect if brought before a tribunal on criminal charges.

There is nothing in it that would grant illegal combatants rights equivalent to legal combatants.

The majority opinion was careful not to address the question of whether or not a terrorist should be afforded the protections enjoyed by legal combatants.

Further, Justice Steven's decision was only a partial majority. A majority of the court dissented from parts of it, as well.

The dissenting opinions penned by Scalia and Thomas were very specific in finding that they should not be. The appeals court decision - on which Chief Justice Roberts was one of the presiding judges before he joined the Supremes - specifically found that Article 2 of the Geneva conventions apply only to "all case of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties."

Last time I checked, Al Qaeda was not one of the High Contracting Parties.

It could be argued - and Stevens does wanly advance - that the conflict between Al Qaeda and the Taliban cannot be separated, and the Taliban should be considered to be "High Contracting Parties."

This is stupid.

First of all, the Taliban are no longer governing. They are now terrorists like Al Qaeda.

Second, Al Qaeda declared war on the West long before the Taliban did. If they are indivisible, then the Taliban would have to have been considered at war with the United States prior to the US attacking Afghanistan.

Not even the Taliban make this arguement.

Moreover, Steven's opinion is predicated largely on the war having begun on September 11th, 2001. Since the USS Cole bombing, the Khobar Towers bombing, and the bombing of two embassies in Africa and the Millennium plot all occured prior to this date, Steven's reasoning is simply perverse. Justice Thomas pointed that out specifically in his dissent, and Stevens continued to defend it.

This is important because Hamdan was charged with conspiracy prior to 9/11. This distinction was key in whether he would be found to be a legal or illegal combatant... a status which was never determined.

The Hamdan decision held that military commissions held to determine the status of detainees must comport with the requirements of GC III. However, it is silent on whether an illegal combatant is presumed entitled to those protections once his status as an illegal combatant is established.

Nobody is arguing that Khalid Sheikh Mohammed or Ramzi Benalshibh were legal combatants.

Furthermore -- and this is something I've never seen anyone else point out: Hamdan was in military custody. The military is subject to the UCMJ. The CIA is not. And my understanding is that those who were waterboarded were in CIA custody, not military custody.

I think it's pretty clearly settled, as a matter of policy, that the military may not conduct waterboarding (which further undercuts your "what if Al Qaeda gets mean on our soldiers" argument.)

Hamdan held that the commission was illegal because it failed to meet the regularity test under the UCMJ (and the GC Art III was codified within the UCMJ).

Obviously, this fact pattern does not transfer to KSM or RB's case.

Further, an interrogation is not a commission, and need not comport with any requirement for "regularity."

"Furthermore -- and this is something I've never seen anyone else point out: Hamdan was in military custody. The military is subject to the UCMJ. The CIA is not. And my understanding is that those who were waterboarded were in CIA custody, not military custody.

So after all that you concede, except for the case where the CIA is in the lead/charge?

And that has nothing whatsoever to do with whether or not illegal combatants and/or terrorists can be subject to coercive interrogation, nor does it have anything to do with whether waterboarding as practiced by the CIA constitutes torture under international law and domestic statute.

No, I'm Getting there. I was just reading the language, and could find no distinction between the CIA and DoD when it comes to compliance with Article 3. They speak in terms of nations, signatory or otherwise. Where do you see a distinction that would let the CIA off the hook.

"Concede what? "

This:

"I think it's pretty clearly settled, as a matter of policy, that the military may not conduct waterboarding "

I never made any such arguments. If I am arguing for anyone, I'm arguing for our troops, you included, and that they will not, and can not, be charged with a war crime somewhere, by some nation, at anytime. And for my own education.

(Scalia, surprisingly, uses the same language as Stevens in his dissent concerning the applicability of Article III. I had expected Il Padrino to vote with Thomas.)

I respect their expertise, but I don't see where it overcomes the plain language of the article itself, nor do I see any evidence in commentaries that the framers of the article intended to extend protection to terrorists as opposed to combatants in a Level I insurgency.

"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."link